Stage set for supreme court to rule on same-sex marriage

Despite winning the Prop 8 appeal, gay marriage advocates are anxious about how this high-stakes legal strategy will play out

A couple celebrates with a kiss after the 9th circuit court of appeals in San Francisco, California ruled on 7 February 2012 that the voter-approved Proposition 8 measure violates the civil rights of gay men and lesbians. Photograph: Justin Sullivan/Getty Images

Legal scholars are almost unanimous in their assessment of the merits of the case: there is no good argument to be made, they say, denying same-sex couples their equal protection rights under the US constitution. That is especially true because 18,000 gay and lesbian couples in California managed to tie the knot before gay marriage was halted by a popular referendum in November 2008; they are still recognized by the state as being legally married.

Opponents of gay marriage complained that Judge Walker was biased because he is himself gay – as he acknowledged publicly following his retirement, a year ago – but their efforts to have his ruling oveturned on that basis were unsuccessful.

One of the oddities of the case is that the named defendants – first, California's then governor, Arnold Schwarzenegger, and present governor, Jerry Brown – have chosen to stay out of it. That has left the anti-gay marriage movement scrambling for lawyers, for legal funding and even for the standing giving them the right to fight their corner in court at all.

Much of the last year's legal wrangling has been taken up with the question of whether champions of Proposition 8 – the ballot initiative in California that outlawed gay marriage – had any place in the courtroom. The appeals court, like Judge Walker, decided it was better to let them speak, than to deny them their say on a procedural technicality.

Still, the legal firepower is lopsided heavily in favour of the pro-gay marriage camp. The effort is being led by Theodore Olson, a conservative former solicitor general, who has argued countless cases before the supreme court and knows many of the justices personally, and by David Boies, one of the country's top litigators, who also has ample experience of the country's top court – often on the other side from Olson. The two of them crossed swords most famously after the 2000 presidential election when Olson represented George W Bush and Boies represented Al Gore.

They have been confident from the start that they could both get this case into the supreme court and win it. They, in turn, were hired by a former Clinton White House staffer named Chad Griffin, who decided, two and a half years ago, to short-circuit the gay and lesbian advocacy community and shoot for the moon to legalise gay marriage, vonce and for all. Some advocacy groups were so angered by this that they found it impossible to throw their full support behind the lawsuit and three of them -- including Lambda Legal and the National Council for Lesbian Rights -- made an early, unsuccessful attempt to intervene with their own witnesses and testimony, even though Olson and Boies made it clear such a move would be counter-productive.

The advocacy groups were worried – and remain worried now – that a negative judgement from the supreme court could set back the movement for a generation. And they resent the fact that high-profile lawyers unconnected to their previous, careful efforts to litigate the issue state by state were now swooping in and stealing the limelight. "Ted Olson and David Boies don't know diddly about gay rights," one of their lawyers complained in 2009. Those complaints have receded as the case has progressed with obvious success.

The groups are still fearful – that the appeals court could overturn Judge Walker, or that the case will have to be reheard by a broader panel of appeals judges, which can be a lengthy process. Or, finally, that the supreme court will prove to be the movement's undoing. The man widely viewed as the crucial swing justice in Washington is Anthony Kennedy, who wrote a landmark ruling eight years ago overturning Texas's anti-sodomy laws – a feather in the gay marriage camp's cap – but also made clear this had no bearing on the rights of gays and lesbians to marry. Legal experts who followed Judge Walker's approach to the case say he was very deliberately tailoring his efforts to appeal to Justice Kennedy's sensibilities. Olson and Boies have had a very similar strategy from the beginning.

The only question is how long the process will take, and what risks are involved. Tension and anxiety certainly exist for opponents of gay marriage, who have lost every significant round of the battle so far, and have struggled even to be admitted to the judicial process. But they are there, too, for the proponents, who have had mixed feelings about taking the issue to federal court from the beginning and remain divided on the wisdom of leaving the final say with a highly ideological supreme court – which could turn, one way or the other, on a single justice's vote.